Corporate Principles Against the FBI & National Security

In a remarkable display of corporate power, and sticking to principles, Apple has defied the legal and moral power of the FBI and the American state.

The furore surrounding Apple and the FBI are well known. The FBI wants Apple to create a ‘back door’ into Apple software so investigators can unlock and examine an iPhone belonging to San Bernardino gunman Rizwan Farook. Apple CEO Tim Cook has been uncompromising in his response.

Even when threatened by the US Justice Department (DOJ) with litigation, and court orders, he has remained vocally and openly defiant. Even going as far as to circulate online an open letter to Apple customers setting out the company’s position, he had come out unequivocally in favour of personal privacy. So far, Mr Cook has refused to consider developing such a electronic back door, fearing the consequences if it was developed and used. Even though law enforcement might have legitimate cases to use such software – the scope for misuse is too great and dangerous. The greater risk, according to Mr Cook and Apple, is if that electronic master key would fall into the wrong hands. Mr Cook has won great support from privacy campaigners, Apple users, and fellow tech companies (such as Facebook). Undeterred on their part by such a strong response, the FBI launched a legal bid to force Apple to develop a way of unlocking their own devices.

In recent developments, the DOJ – on behalf of the FBI – asked for the court proceedings to be postponed. The reason behind that was that the FBI claims that they might have a way to unlock the iPhone without Apple’s cooperation or help. The Bureau has not revealed the nature (or indeed the source) of the potential solution – which itself could be another ethical issue.

In a slightly surreal twist, eccentric cyber security software creator John MacAfee has offered his services to the FBI for free. In a convoluted (but logical) line of argument, he considers it better for a team of cyber security experts like him and his team to break the encryption rather than other ‘rogue’ hackers – and remains convinced he can crack the iPhone code within three weeks. The Bureau has yet to respond to his offer.

The initial FBI legal request was filed under the All Writs Act (1789). The Act is both straightforward and broad. The relevant part of the Act allows for

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

The Act has been interpreted since the invention of telecommunications as to allow US law enforcement to get telecommunications companies to provide all and every assistance to investigations. That includes handing over records, or monitoring customers or devices as required. A leading case when the Act was used was United States v New York Telephone Co 434 US 159 (1977).

The FBI was investigating suspected illegal gambling in Gramercy Park. A request was filed in court for the New York Telephone Company to install a pen register. More commonly called a dialled number recorder (DNR), pen registers record all numbers dialled from a particular telephone line. The District Court approved the order, and required the company give all and every assistance in installing a pen register. The telephone company appealed.

Eventually, before the federal Supreme Court, the Justices found in favour of the FBI. Under the All Writs Act (and other legislation), it was perfectly legitimate to get the telephone company to install the DNR. Subsequently, 1986 saw the Electronic Communications Privacy Act passed. Title III created the Pen Registers Act (1986), which included rules and restrictions on pen registers being used by private companies and law enforcement.

This case has been cited in pre court filings by the FBI. Although privacy is not mentioned in the Constitution, the Bill of Rights (the first ten Amendments to the Constitution) do reference privacy issues indirectly. Whilst not drafted with 21st century technology or communications in mind – probably Apple will be using the Bill of Rights in its response and defence. Of interest might be the Fourth Amendment, which protects citizens from “unreasonable searches and seizures” – however defined.

This is but the latest in the endless battles between online and cyber privacy – and national security. Following the attacks in Brussels and now Lahore – counter terrorism hascbevone ever more important. With terrorists and other criminals increasingly moving online, and acting online, it is ever more important to monitor online activities. However, privacy rights activists equally vocally advocate for individual privacy in the face of intrusive state surveillance.

Many on both sides agree that a compromise or balance needs to be found between the right to privacy and national security. Legislation is needed, and rules and procedures in this regard. Despite that consensus there are those on both sides who remain unmoved by any compromise.

Although this is an American matter, concerning American laws over the American investigations into a domestic terrorist incident – this is a global debate and concern.

In the UK, the Regulation of Investigatory Powers Act (2000) (RIPA) has proved highly unwelcome and controversial. Its planned successor, the Draft Investigatory Powers Bill (DRIP) has proved similarly divisive, and is still under debate.

Apple is pushing for greater personal privacy – with the British government seemingly wanting greater surveillance powers. The solution lies somewhere in between. However, as time and technology advances, the time and opportunity for debate is slowly ending. Tough decisions need to be made, and soon, by governments, major technology and communications corporations, and campaigners.

The current culture of fear and terrorism is tipping the scale and debate towards greater surveillance in the name of national security. However, once the state has those enhanced surveillance powers – those powers will remain long after terrorism is gone.

Returning to California, the case is currently postponed. It is inevitable that eventually the case will come to court. It is further very highly likely that appeal will follow appeal – and will likely end up in the federal Supreme Court. Given the implications of any verdict, this (hypothetical) case could very well end up as significant as Roe v Wade. The landmark case of Roe v Wade set out the limits of state interference in the lives of private citizens.

Given that the litigation between Apple and the FBI could very well determine that level of state surveillance, intrusion and interference in the lives of citizens – the comparison could be very apt.

Update : it was later announced that the anonymous third party (suggested to be Israeli cyber security firm Cellebrite) had suceeded in unlocking the iPhone in question. The FBI has dropped its law suit against Apple. This is worrying for Apple, as it now evident that there is a flaw in its security measures : doubtless that will be found and fixed in future software and devices. Whilst the law suit may be over – the debate very much has just started. It is only a matter of time before another similar case is brought forward, with similar legal arguments advanced, and similar principles at stake.

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Parliamentary Opposition – Or Consensus Regarding the EU?

After all the hype, it begins in earnest.

Currently, Prime Minister David Cameron is having exhaustive talks with EU leaders from across the board (notably focussing on a few key players such as Prime Minister Mark Rutte in, The Netherlands which currently holds the rotating EU Presidency) as he renegotiates the UK’s position in the EU. He has met with some opposition – but recently has begun to gain some converts.

For example, German Chancellor Angela Merkel is no longer so hostile, and is seemingly open to limited discussions of his four demands. Of course, she herself is facing domestic issues in Germany- such as the aftermath of the VW emissions scandal, the Cologne police after the New Year’s Eve attacks, and accepting nearly one million refugees in 2015. German hand The Netherlands are but two nations of the EU that Mr Cameron needs to convince and negotiate with, though.

Back in the UK, EU matters also gather apace.

Formal campaign groups have been formed to campaign both for and against the UK  remaining in the EU. Britain Stronger in Europe is led by former Marks & Spencer chief Lord Start Rose, a host of other business and political heavyweights – and Tony Blair. It believes that remaining in the EU is the right decision, whilst leaving would limit trade and business and diminish the global standing of Great Britain.

Vote Leave is a cross party group that wants to leave the EU if renegotiations fail. Alternatively, Leave.EU is an alternative “no” group founded by a UKIP donor. It believes that the EU is bad for British democratic and political values.

In further steps towards the Referendum, prior to his trip earlier in January to Germany, Mr Cameron stated that Conservative MP’s and ministers would have a free vote on the issue. The political and legal concept of collective cabinet responsibility means that the Cabinet, and senior Ministers, are required to obey the party line and stance on issues, regardless of their own personal beliefs. Indeed, there have been celebrated occasions where Ministers have had to resign, or have been criticised, for breaking with that concept.

In setting aside collective cabinet responsibility, and allowing MP’s to campaign for either side of the issue, Mr Cameron is silencing those who may not agree with his EU policies, or the renegotiations. In a political party that although is traditionally eurosceptic, such a move allows those with different views of EU to speak freely, and to vote and act with their conscience, on the matter. Ironically such a free vote allows the Conservatives to actwith less internal infighting and political and  media fallout than if they all had to obey the party Whips -which will definitely help the Conservatives to present a united front of the EU, despite their differences. Further, such an important issue gets to be fully and freely debated, both on the governemnt benches in Parliament and elsewhere by MP’s.

And during this time what of Her Majesty’s Loyal Opposition?

It must also be noted that whilst Mr Cameron was ensuring free vote, Mr Corbyn on the other side of the green benches was reshuffling his Shadow Cabinet. Although his advisors denied it, it was an open secret that the reshuffle was due mainly to dissent in the Labour ranks over Mr Corbyn’s hard line stance against British air strikes in Syria. One of those who left the front benches was Pat McFadden- a known advocate of the UK remaining in the EU. Recent weeks have seen even more internal squabbling over defence policy and the Trident nuclear deterrent – and the departure of a key aide to Mr Corbyn.

Mr Corbyn himself is a keen advocate of the EU, citing the cooperation and support of the EU regarding social justice and inequality mainly. However, he has yet to reveal what his stance, and that of the Labour party, will be as the referendum approaches. Instead, he elects to criticise the government policy, claiming the referendum as “unnecessary”, and merely a ploy to steal anti EU Labour voters, amongst other things.

Ironcially, he does admit that the EU needs reform, and that he will work towards securing that reform. As to the nature of the reform – it is still unknown, just like the rest of Labour policy regarding the EU. What is certain is that when Mr Corbyn decides what that policy will be – all of Labour will be “encouraged” to support that one viewpoint.

Whilst Mr Corbyn is seemingly stifling opposition and dissent, Mr Cameron is welcoming the debate. A further irony is that the Prime Minister’s repeated desire is that Britain should remain in a renegotiated EU – which is not too dissimilar from what Mr Corbyn (presumably) believes.

As other pressure groups arise to argue for both sides of the debate (such as the Scottish Labour Movement for Europe, a pro- EU Scottish group, who had Gordon Brown deliver a speech at their inaugural meeting), it is clear that domestically this important matter of the UK in the EU will be fought on the issues, and not on traditional party political lines. Whilst mentioning Scotland, the SNP continues to support Scotland (and by extension the remainder of the UK) remaining in the EU. The SNP also continue to show total unity and solidarity in this regard, in a manner that must make Mr Corbyn jealous, considering the dissenters on his side of the Opposition benches. However, Nicola Sturgeon and others have hinted in the past that the current EU does need reform for it to be of greater benefit for Scotland. Again, no details have been admitted as to what exactly the SNP would like reformed in the EU.

Regarding the referendum, the Prime Minister told MP’s this month that “this is the choice of the British people. They can either choose to stay in a reformed European Union or leave the European Union. Come what may I will continue to lead the government in the way I have.” That is a direct challenge to those who may feel that his leadership might be under threat following whatever outcome of the referendum vote. Ironically, his suspension of collective responsibility makes his position more secure as leader as it encourages debate and opposition. This is in marked contrast to Mr Corbyn, who is already seeing his firmer style of leadership backfire.

As the negotiations over the EU continue, and the campaign groups start work in earnest, it seems as if all parties are actually in agreement. For many, the EU is suddenly in need of reform, but no one knows what reform. Unfortunately, that option cannot appear on the ballot box.

The interesting change seen is in domestic politics. The Conservatives seem more relaxed over Europe, with Labour having no idea about the EU (actually, that last is nothing new). The biggest change, due to the EU and other matters recently, is that the real dedicated voice of political opposition and challenge to the government is not coming from Her Majesty’s Loyal Opposition – but from Scotland and the SNP.

Actually, history teaches that that last point is nothing new either.

Law in the news, Musings... , , , ,

The Enigma Of Labour’s New Leader And The Scottish Question

As the anniversary of the historic Scottish Referendum dawns upon the British Isles, what has happened as regards the Scottish Question, and indeed the interaction between the various parts of the UK since? Seemingly, a lot has happened – and at the same time nothing has happened at all. What is unchanged is that Scotland continues to dominate the political scene.

In Scotland itself, all of the major parties are still trying to make some headway against the seemingly unstoppable avalanche of support for the Scottish Nationalist Party (SNP). Indeed, the Labour Party is still in slight disarray after its defeat in May, and has had to reinvent itself, both nationally and above all in Scotland, to gain supporters. The recent leadership debate has seen great support for the Labour Party, as many registered to cast their vote regarding who will lead Her Majesty’s Opposition, The amount of people who registers, and the amount of public debate and interest over the leadership race is in itself symptomatic of greater voter engagement over major political issues. Whatever the outcome of the leadership race was – there is no doubt that the new Labour leader would definitely have am mandate from the Labour party, and the public at large.

Of course, the voting showed a clear win for the former 200/1 candidate – Jeremy Corbyn. He promptly celebrated his victory by courting controversy in his first few days in office, and attempting to alter the format of the venerable tradition of Prime Ministers Questions (PMQ’s). Such actions, and indeed prior conduct, opinions and behaviour over the decades have won him both supporters and critics; this was reflected as he put together his Shadow Cabinet, and the reaction from both his backbenches, press, and Labour supporters regarding his choices. Clearly, British politics will be more interesting over the next few years with such a divisive figure leading the Opposition.

Returning to an SNP dominated Scotland, Scottish Labour has been seeking to reinvent itself, and to change following its humiliating defeat in May. Further, in the absence of firm leadership from Westminster, Scottish Labour Leader Jim Murphy has essentially been let on his own. Without any direction or leadership from a Westminster dominated with victorious Conservative and SNP MP’s, Scottish Labour has been left to stand alone,

With Mr Corbyn now firmly in charge, Jim Murphy can breathe easier now. Or can he? Even with Mr Corbyn in charge, the issue still remains. Throughout his political career, Mr Corbyn has been seemingly ambivalent over Scotland. The Referendum of 2014 left him characteristically quiet and in the background. Although asserting strongly Scotland’s right to a referendum, he has yet to be definitive regarding the matter. One commentator has been moved to say of Mr Corbyn’s ambivalence over Scotland that he “seemingly just wishes that the matter would simply go away.”

This is in contrast to Prime Minister David Cameron. His first action following the results was to announce the Smith Commission. Led by Lord Smith of Kelvin, the Commission was to“convene cross-party talks and facilitate an inclusive engagement process across Scotland to produce … recommendations for further devolution of powers to the Scottish Parliament.” Mr Cameron himself has long championed a United Kingdom, and has worked to preserve the Union. Of course, Mr Cameron also remains set on altering the UK/EU relationship prior to an In/Out referendum; not too dissimilar to the Scottish Question.

Whilst many are calling for the matter to be buried following a democratic choice, there are still some who see the question of Scottish Nationalism as an issue to be revisited until they get the right answer. There are fears that a disunited Scottish Labour (amidst other issues, such as Trident) would set off another independence referendum. To maintain political harmony north of the border, Mr Murphy will be looking to support from Westminster – and will seemingly get none form Mr Corbyn.

This is surprising given Mr Corbyn’s actions and statements previously. He has long supported (sometimes controversially) over his support for a united and independent Ireland. With another referendum looming, this time over the EU, Mr Corbyn has come out against backing an EU exit. He has also stated his intentions of renegotiating the EU/UK relationship if he becomes Prime Minister in 2020- something which Mr Cameron is seeking to do now.

Overall, it seems that although Labour is now united with a Leader, Deputy Leader, and Shadow Cabinet, and more supporters in recent months – the party has never been more disunited. This is mainly due to the mass of contradictions that is their new leader, Mr Jeremy Corbyn. A quiet and unassuming man, he has strongly held convictions and opinions- which he struggles to air and vocalise. As Labour stalwart (and former Chairman of the Better Together campaign) Alistair Darling stated in a radio interview “I know what he is against but I’m not actually sure what he is for.” Both in Labour, in Parliament, and amongst commentators and the public, Jeremy Corbyn has attracted supporters and critics in equal measure. Although his statements and actions have been bold and courted controversy in his first week- he has still yet to define what his version of Labour is.

Musings... , , ,

War & Peace – And Diplomacy

August saw a great step forward for international relations and diplomacy in two very different places; Havana and Tehran.

In a simple but security conscious ceremony, US secretary of State John Kerry and Cuban Foreign Minister Bruno Rodriguez were both present in Havana when the Stars and Stripes was once again raised over the US Embassy premises. Despite travel restrictions and economic sanctions still remaining, and concerns over human rights abuses in Cuba remaining an issue, on that sunny day in Havana the three marines who took the US flag down in 1961 on the orders of President Dwight D Eisenhower helped to raise the flag again. Many in Washington, and in both nations, welcomed this moment as long overdue, and as a sign of deepening relations between the two nations.

On the other side of the world, UK Foreign Secretary Philip Hammond became the first British Foreign Secretary to visit Iran since 2003. The British Embassy in Iran was closed and diplomatic representation withdrawn after the premises was stormed by Iranian protesters in 2011. In his visit to Tehran, Mr Hammond saw the Union Jack raised over the British Embassy again, and full diplomatic (and trade) relations established. This was in the wake of a recent historic agreement between Iran and the West over nuclear related issues (that agreement itself has attracted much criticism, particularly in the US).

The same day former Foreign Secretary Jack straw was in London at the reopening of the Iranian Embassy in London. Similarly, a Cuban Embassy will be reopened in Washington DC later this year.

Both ceremonies were due to extensive talks, diplomacy and negotiation over several years. Given the frosty relations between the respective nations, the openings are great step forward in their respective diplomatic impasses.

The Vienna Convention on Diplomatic Relations (1961), although old in legal and diplomatic terms, is still a key international legal agreement regarding diplomatic missions and representations. Although much is clarified and codified, a lot of diplomacy remains unsaid, and unwritten. Perhaps that is for the best, as it allows diplomacy to evolve and change to best tackle modern times and places and diplomatic issues and impasses, and does not constrain diplomats with rigid, archaic rules and procedures. However, that aside, there is a great deal of diplomatic procedure, precedent and protocol for the aspiring diplomat to master.

In that regard, His Excellency Tom Fletcher has been the British Ambassador to Lebanon since 2011, and recently returned to the UK. During his time in Lebanon, although having to go through centuries old diplomatic protocol, receptions, and procedures, Ambassador Fletcher showed a modern face to international relations. He became passionately and deeply involved in many matters of Lebanese society and politics, and embraced modern means of communication and technology such as social media and tweeting, sending and estimated 10,000 tweets during his tenure. He was regularly seen at local events, clearly preferring them to traditional diplomatic soirées- but also was a regular at traditional diplomatic events, meetings, international trade fairs and related matters. Whilst that traditional protocol definitely had its place- Ambassador Fletcher and younger diplomats today can utilise modern technology and communication to good diplomatic effect as well.

Aside from the highly symbolic nature of the ceremonies, the Embassies reopening do have practical uses. Diplomatic relations can be effectively and practically managed and run, and matters of visas, immigration and tourism can be better handled. However, it is that symbolism that is most important. After lengthy bilateral talks and agreements under the Obama administration, and all nature of agreements, Cuba is slowly ceasing to be perceived as a diplomatic enemy, issue and problem by Washington, and vice versa. The British Embassy reopening in Iran is but one of the ways in which the West is trying to cooperate with the unstable, repressive regime in Tehran, and to attempt to engage the Iranian leadership in dialogue, as opposed to nuclear proliferation, and accidentally stirring up regional tensions.

After relations deteriorated between the UK and Argentina following the Falklands, it took many years to re-establish political relations. Between the War and 1992, despite the diplomatic buildings themselves being open, there was no formal representation. In Buenos Aires, the British mission became the British Interest Section of the Swiss Embassy, and in London the Argentine Embassy flew the Brazilian flag.

With diplomatic relations being formally re-established in 1992 after Margaret Thatcher was replaced, although the matter of the Falklands remains, at least both nations have diplomatic channels to voice their concerns, and to make their point. Such diplomatic relations and, crucially, representation allows for dialogue. Such representation reduces the risk of another conflict. Although the language between the two nations has been increasing tense and heated in recent years, that language has at least been in the flowery rhetoric of diplomacy, as opposed to aggression and warfare.

Indeed, that is the triumph of the recent events; the power of dialogue, and talking. Protracted negotiations, as opposed to violence. Slow but steady moved towards peace by consensus and compromise, as opposed to both sides suffering in a conflict.

Sometimes, diplomacy admittedly does not work. Korea is an example. The DMZ between both Koreas is still one of the most fortified, mined and heavily patrolled and monitored areas in the world. Repeated peace talks have failed, and tensions regularly rise in between both nations, only to be smoothed over after time. In many cases though, such diplomacy is worth a shot and an attempt.

This return to diplomacy between adversarial nations shows the power of peace and negotiations. This is particularly poignant this year, and in recent months, and the UK and other nations recently commemorated 70 years since VE Day and VJ Day, and during these centenary four years since the First World War.

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Michael McIntyre and the Benefits of No Legislation

Although the whistleblowers of recent years may be largely forgotten, and their revelations old now- the issue of privacy is around to stay, and is very much as topical now as it was at the height of the media disclosures. Indeed, it was the police who recently, unwittingly brought such matters to the public eye again.

Firstly, there is no specific, direct legislation regarding personal privacy in the UK. In many other jurisdictions, by contract, there is. The US Bill of Rights, for example, makes specific reference to the right to privacy. Due to a lack of legislation in the UK, though, the courts have had to make do with leading case law, and some elements of human rights law. The result has been to effectively cobble together and create privacy ‘legislation’ without the need for actual legislation.

As such, it is debatable whether the Metropolitan Police Service (MPS) was in breach of the law by the actions of one of their helicopters earlier this month.

Comedian Michael McIntyre and a publicist were caught on camera by a police helicopter one morning in the area of Leicester Square. It was a perfectly innocent moment and image; however, the police helicopter crew acted more like paparazzi than public servants by saving and uploading the image to an official police Twitter account. According to statements released by National Police Air Support (NPAS) London, the helicopter happened to be on a ‘routine mission’ at the time, and the image just happened to be accidentally recorded.

The image of Mr McIntyre was later taken down- not before igniting the privacy debate. Bizarrely, the police probably did not act illegally in this unintentional snooping due to a lack of legislation. Admittedly, lawyers would find legal grounds to challenge the police activity, some of those grounds being privacy related. With no (sic) privacy legislation in place for the police to breach, it is unlikely that NPAS London will be prosecuted, or face legal action, for breach of privacy. However, the matter is being investigated by the Information Commissioner as a potential breach of individual privacy, and a breach of codes of practice and regulations regarding surveillance. Mr McIntyre has not commented.

Although probably meant as a well-intentioned, indeed respectful, joke or prank, or similar, the matter does highlight matters of personal privacy and surveillance, unintentional or not.

While the Prime Minister has set out his aims for a British ‘Bill of Rights’, and to overhaul human rights legislation, at no point has he directly referenced privacy laws, or the intention of the government regarding personal privacy. After Home Secretary Theresa May’s belligerent stance on extremism, and her arising determination to give the police the powers that were needed, maybe Mr Cameron is being wise to give the matter a miss. After all, the Home Secretary’s actions regarding personal privacy have recently returned to haunt her.

In recent weeks the High Court ruled in favour of Tom Watson MP (Labour, West Bromwich East) and David Davis MP (Conservative, Haltemprice & Howden). The matter before the court was the Data Retention and Investigatory Powers Act (2014) (DRIP Act); both Mr Watson and civil rights activist Mr Davis claimed that the provisions of the Act enabled the security services and police to spy on citizens without adequate oversight and safeguards.

Assisted in court by civil rights group Liberty, the MP’s from opposite sides of the green benches argued that the Act was in violation of the right to privacy and a family life, protected by Article 8 of the Human Rights Act (1998), and the European Union Charter of Fundamental Rights (EUCFR).

The two judge panel ruled that parts of the Act are indeed unlawful and incompatible with human rights legislation, specifically Articles 7 & 8 of the EUCFR. The verdict essentially nullifies aspects of the legislation, but the order that parts of the Act should be “disapplied” has been suspended until March 2016. The government is set to appeal the verdict.

Under the provisions of the DRIP Act, internet and phone companies are required to collect and store the personal and communications data of their customers for up to 12 months. Such data gives a very good digital footprint of internet or phone use, often very detailed and intrusive- and is available to the police, security services and up to 600 public agencies upon request.

The data collected is not records of phones calls or internet use. It is rather logs of such activity, such as records of who called who, when, and for how long, and evidence that an email was sent at a certain time to a certain recipient, instead of the actual contents. Even without the content, analysts can still find such data very useful in investigations.

Liberty and other civil rights groups have long protested those provisions of the DRIP Act as a violation of basic human privacy, and an erosion of civil liberties. Another matter brought to the court’s attention was the rushed passage of the Bill from first reading into law. Starting its journey in the House of Commons at first reading on July 14th of last year, it received Royal Assent after being debated in both Houses) a mere three days later, on July 17th. Both the MP’s and civil liberties campaigners have long criticised the haste of the Bill’s passage.

Such a legal challenge of the government of which they are a part from two sitting MP’s is very unusual- as is such cross bench consensus. The challenge leaves Ms May, one of the sponsors of the DRIP Act, rather put out as she attempts to gain support for similar, more draconian, laws that would give the police and security services yet more surveillance powers.

In efforts to tackle the ever present threat of extremism and terrorism, Ms May and Parliament brought into law legislation that potentially encroached upon personal privacy. As such, what little legation in the UK that does reference personal privacy could be interpreted as limiting it.

If he so desires, Mr McIntyre could bring legal action against the police using human rights legislation, cases such as Douglas v Hello! Ltd (2005), and other legal principles and cases from human rights and civil law to address the infringement upon his own privacy. In this he would probably be successful, as many courts and judges have long upheld the concept of individual privacy.

Perhaps it might be a good idea not to have specific privacy legislation in Britain after all.

Human Rights , , ,

Public International Law- and Magna Carta

Recent months have seen events happening nationwide to mark the 800th anniversary of the signing of the Magna Carta. The centrepiece of those events was a ceremonial day at Runnymede in Surrey on the day the charter was signed. That was well attended by the political and ruling elite of Britain- who medieval equivalents had gathered there 800 years ago to sign a peace treaty with the King, and to historically sign certain freedoms and democratic values into being.

The great significance of Magna Carta was that it was left evident that no one was above the law. This applied to all, from the lowest farm labourer- to even King John himself.

One of the many impacts of Magna Carta was that the power of the King and the Crown was severely curbed. In the medieval world, this was very revolutionary- and came a few centuries before the Civil War resulting in another King being executed. King John was forced by his barons to sign Magna Carta, and essentially agreed and accepted that there were limits to power of the Crown, and that even the Crown was not above the law.

Indeed, that has proved never evident as in recent years. November 2002 saw Princess Anne fined £500 over an incident involving one of her dogs. It was the first time that a member of the Royal family had been taken to court, and indeed convicted of an offence for over 100 years. This followed a court hearing for speeding the previous year; whilst driving to an engagement in Gloucester, she had failed to pull over when caught speeding, genuinely believing that the police car with blue flashing lights behind her was an official escort. The Princess Royal was not above the law of the land.

Further, earlier this year the Supreme Court ended the lengthy litigation concerning Prince Charles’ infamous ‘Black Spider’ memos, thoughtful, informed and insightful private letters written to government ministers on an impressively varied range of subjects. The Supreme Court ruled that it was in the national interest for some of those letters to be released to the public, following lobbying, litigation, and Palace injunctions. Once again, the Prince of Wales was not above the law of the land.

Although not necessarily directly due to Magna Carta, Parliament and the government are similarly not above the law of the land- as the House of Lords, Supreme Court and other judges have reminded MP’s over the intervening centuries in many legal cases. Further, transparency and accountability underpin Parliamentary proceedings, be it in Parliament or on committees, or independent scrutiny of records and accounts. It is an important part of democracy that government is subject and subservient to the law it creates.

In total contrast, on the international stage, such a principle is often non-existent. Whilst the nations which adhere to Magna Carta willingly accept that no one is above the law- in the international arena, there are some that think they are. With monotonous regularity, Russia’s Vladimir Putin, Muammar Gaddaffi’s Libya, Saddam Hussein’s Iraq, and several other nations (such as North Korea and Iran) have flouted UN resolutions, or other binding international legal treaties or injunctions. Clearly they consider themselves above international law.

The UN has enacted resolution after resolutions against certain nations and their leaders- who have continued to act as if with impunity, causally flouting international law, and related legal requirements. Admittedly, although some nations and leaders do seem to get away with murder (literally), many other international legal disputes have been successfully settled by a variety of international courts and tribunals. The International Court of Justice (ICJ), the various War Crimes Tribunals that have been heard at The Hague and similar international courts have admittedly had great success in bringing despots, mass murderers and authors of genocide in various conflicts around the world to justice.

On the face of it, it may seem that the UN and its various bodies are powerless to enforce the rules and resolutions arrived at. There is some truth in that- but it is not the whole story. On many occasions, the UN has authorised and deployed peacekeeping forces and troops, operating under a UN resolution, and operating under conspicuous UN insignia, with national badges relegated elsewhere on uniform and equipment. The brainchild of Canadian Prime Minister Lester B Pearson, such peacekeeping forces first proved their worth in Suez in 1956, and have usually enjoyed success whenever they are deployed. NATO has also operated under UN resolutions on many occasions. Quite clearly, the UN Security Council is not afraid to used the ultimate sanction of armed force if necessary.

The same cannot be said of other international bodies- such as the G7. At their recent summit in Germany, one of the subjects of discussion was Russian aggression. At the end of the two day summit, what had been agreed and released to the press was a series of statements underlying the need for increased international cooperation,and to uphold ‘freedom and territorial integrity. ‘ Russia did get a mild rebuke for its annexation of the Crimea- more akin to a child forgetting their homework than the playground bully getting the suspension they deserve. Global security and terrorism concerns were also discussed- with a similar mild statement.

A major G7 talking point was climate change, and related. Unsurprisingly, the G7 saw the need to tackle climate change, and to address the issues of renewable and non renewable energy resources. Whilst setting out welcome proposals for the seven most industrialised nations to reduce their dependencecon fossil fuels and release less carbon, the language used was quite weak. From the seven most powerful, influential, wealthy and industrialised nations, one would expect their language to be stronger, and their decisions to be more decisive, dynamic and active. Sadly, that was not the case.

Clearly, international law breakers can expect little repercussions from the G7, despite their collective and individual influence. It seems as if that ultimate arbiter is still in New York- the UN.

As an international body, the UN has fared better, and lasted longer, than its predecessor, the League of Nations. After that collapsed as the works went war again in 1939, few lamented its demise. The UN, formed in 1945, has been in existence for over 50 years now. It has settled disputes and issues between nations, set out and defined matters of international law, and is still considered the ultimate arbiter in the international arena. That is to say nothing of its myriad of agencies, and all the good work they do. The UN must be doing something right.

The question here is how to enforce public international law if it is flouted. Practically, at times it can be hard to bring those leaders in question to account. Legally, it can be virtually impossible to do so, given the complexities of international law, and questions of jurisdiction and jurisprudence. Even bodies such as the G7 and UN have their limits in this regard. However,  regardless of what may or may not happen to those leaders who fail to uphold international law, in most cases pressure is brought to bear against them by the sheer weight of international opinion against their actions.

It is often recognised that a nation has acted contrary to international law. Consequently,  it is recognised that no nation is above international law.

What was written and was applicable in medieval England- is very much applicable in 21st century international law and diplomacy.

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Three Party Election Politics: from Edinburgh to London, Via Cardiff

As the General Election political campaigns got underway in earnest, Ed Milliband commented how the election results could have the “Scottish tail wagging the English dog.” Although it was a remark made more in jest- it certainly seems very true.

The 2010 General Election saw the Liberal Democrats become a credible, significant political party. Under inspired leadership from an engaging Nick Clegg, in the run up to May 2010 the Lib Dems saw a huge surge in popularity, support- and votes. The result of that last minute surge was Nick Clegg and David Cameron forming a Coalition government. That three party, coalition government system is seemingly here to stay- as the run up to May 2015 shows.

However, this time, the Lib Dems are seemingly nowhere to be seen. Indeed, UKIP (with only two MP’s) has seemingly had more publicity and voice this General Election compared with the more moderate and restrained Lib Dems; it must be noted, though, that much of that UKIP publicity has been for all the wrong reasons.

With the Lib Dems no longer the credible party they were in 2010, it is the Scottish National Party (SNP) that has benefited with a similar sudden surge in support this election. Following on from their strong performance and success in the Scottish referendum of 2014, their support and power base has only grown. Further to that, recent months has seen the popularity and credibility of the Scottish party rise and rise.

Outside their dominance in the devolved Scottish Assembly, the SNP has six MPs in Westminster, out of 57 seats in Scotland; they are predicted to win over 50 of those seats in May. By contrast, the Lib Dems (with 56 seats nationally, and partners in the Cabinet) are predicted to retain only one of their Scottish seats; Orkney & Shetland is the most northerly constituency, and a Lib Dem stronghold, whose MP is currently Scotland Secretary Alistair Carmichael. Due to constitutional reforms, those six Scottish MPs have considerable say south of Hadrian’s Wall. Consequently, 5.2 million Scots have great influence and power over the remaining 59 million in the British Isles; Mr Miliband’s ‘Scottish tail wagging the English dog.’

Although helped by this absurdity of the Westminster system, Nicola Sturgeon herself has been part of the SNP’s success. She has received great support nationwide recently, indeed, many political  commentators agree that the Scots lassie ‘won’ the two leader’s debates with excellent performances. Aside from challenging the government on several fronts, she has vowed that the SNP will work in Westminster to secure the best deal for Scotland- ironic from someone who aspires towards Scottish independence, and is critical of Westminster party politics.

Whilst Ms Sturgeon has enjoyed increasing popularity, both David Cameron and Ed Miliband  have seen their own popularity fade. In their own parties, both are expected to deliver election success. With that success unlikely for both Conservative and Labour given the current polls and figures, what is likely is that both parties could see fit to replace their respective leaders after May. Indeed, the Conservatives have quite a record as regards replacing party leaders. Mr Miliband’s position is also far from secure as many perceive him to have stabbed his own brother in the back concerning the Labour party leadership.

In contrast, Ms Sturgeon’s status and as a national leader was cemented at the SNP manifesto launch last month. Aside from a variety of both Scottish-centric and UK relevant policies (such as an increase in affordable homes built throughout the UK), she stated unequivocally that SNP MPs would make “Scotland stronger at Westminster”. Ms Sturgeon went further, seemingly addressing the rest of the UK when she said that “Although you can’t vote SNP your views do matter to me and you have a right to know what to expect of my party if the votes of the Scottish people give us influence in a hung parliament… If the SNP emerges from this election in a position of influence we will exercise that influence responsibly and constructively, and we will always seek to exercise it in the interests of people not just in Scotland but across the whole of the UK.” In this way, the Ms Sturgeon finally openly acknowledged that the SNP will probably hold the balance of power after May 7th.

Most of the current polls and data at time of writing indicate that neither of the two major parties will win an outright majority.  In a reflection of the three party politics that is now part of the UK, a similar Conservative/Lib Dem agreement with one of the smaller parties will probably be needed to form a government. Mr Miliband might be proved only too right as regards the Scottish tail wagging the English dog. The SNP is not alone, though, in that capacity.

Aside from the SNP, Plaid Cymru in Wales, with a majority in the devolved Welsh Assembly, is also watching and waiting in the wings. Plaid currently has three MP’s, out of 40 Welsh seats. The polls predict that those 40 seats will be won mainly by Plaid and other smaller parties (Green, UKIP, or Independent). After years of seemingly neglecting Wales and Welsh issues and politics, the two major parties are probably going to feel the backlash. Tired of central rule that has often failed to address serious issues in Wales, they are turning to local parties who are concerned more with local issues than Westminster politics.

That sentiment is not exclusive to Wales. Many other regions also feel similarly neglected and disaffected by rule from a distant, out of touch London. This sentiment for a local solution to local issues, for a greater emphasis on regional powers -shown spectacularly in the Scottish referendum- shows a rejection of the current political and governmental system. Amidst the infighting and party politics at Westminster, it is the smaller parties who have really embodied the former David Cameron maxim that ‘we’re all in this together.’ Quite often, they have acted in support of each other, and shown great consensus and fellowship.

Whilst the two major parties remain aloof, those smaller parties are a champion of the British people, and of what really matters. They have remained united, and have spoken for local and everyday issues. The SNP, Plaid Cymru, the Greens, and others, have had little to do with Westminster intrigues. Although local and regional, and championing devolution, ironically by standing for the people, and by working together, the smaller parties are strengthening the Union. It is another British counter intuitive irony- just like the West Lothian question.

However, electoral trends do have a nasty habit of repeating themselves. The local and regional parties should take care, lest they suffer the same fate as the Lib Dems. Their greatest support is championing local and regional matters. Although they are needed to operate on a national stage, they should not forget their roots, and local origins. After all, that is what got them to their current position of political dominance.

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Chinese Colloquial Speech & British Law

Recent weeks have seen a new character come into existence in the Chinese language.  Although it does not yet appear in the Chinese dictionary, it has spread around China and Chinese speakers like wildfire. As of the beginning of March, it had appeared over eight million times on Weibo (Chinese equivalent to Twitter), even creating a top trending hashtag. Baidu (China’s biggest Internet search engine), it has been looked up getting close to a one million times. So great has the interest been, that even the West has caught sight of it.

The character is known as “duang”. As regards its meaning- no one is quite sure exactly as to what it means. Some experts claim that it is an example of Chinese onomatopoeia. Many others claim that the word “duang” can itself have many different meanings. In conversation, duang is increasingly used for emphasis. This is particularly if placed next to an adjective; a duang complicated Chinese character, for example, serve to emphasise the complicate nature of the Chinese letter. Seemingly duang is more a cultural colloquialism originating from Jackie Chan, then a word that Sun Tzu or Chairman Mao would recognise. What is in agreement, however, is that “duang” can gave a multitude of meanings or interpretations- but is extremely hard to translate literally in it English.

Unlike the more precise English language, with its ponderous  array of grammatical rules and auxiliary words, and word heavy English, Chinese is very much open to interpretation, with the characters and words meaning different things all at the same time.

In that way, the Chinese language – and duang- is similar to law; open to interpretation, and meaning different things. Although the Parliamentary draftsmen wring the statutes and the judgers in their verdicts try to be as precise as possible, they always seem to leave to leave room for interpretation, for development in the law- or even for the matter under discussion to be reversed. Of that last, the 1966 Practice Statement from the House of Lords is a good example; under the infamous Practice Statement, Lord Gardiner LC allowed the House of Lords the ability to depart from previous House of Lords rulings if doing so would better serve justice. Although the legal principle of stare decisis decrees that past judgement for higher courts must be followed, the Lord Chancellor conduced that that act might in some cases by prejudicial to natural justice. Although stare decisis is still absolutely vital in the English legal system, the Practice Statement allows for that principle to effectively be voided. No doubt the Chinese have a clever character clearly expressing such contradictory and conflicting ideas in one symbol, as opposed to several sentences as in English.

The lack of precision, and the preciseness the law are indeed perfect examples of duang; two things at once, a total contradiction. The mental ability that lawyers need is quote sophisticated to be able to juggle those concepts, and to be flexible in applying rigid rules and procedures.

Often lawyers will argue amongst themselves and before a judge as to the exact nature and meaning a sentence, a phrase, a line or even a word on a statues, case , regulation or similar. Often an entire legal argument or case will stand or fall on such a precise definition. Indeed, judges often find themselves having two decide upon, and arbitrate between two extremely similar, but subtly and crucially different, such definitions. Judges might well want to consider the term duang.

The English legal system currently in place has been the result of legal principles and decisions stretching back nearly one thousand years to Norman times. In Norman times, a sophisticated legal system emerged to govern and rule England, and to ensure that taxes were levied and paid appropriately, based around feudalism and land ownership. In the 21st century, a legal system has emerged based on fairness, justice, modern society and big corporations- and one that allows HSBC’s wealthy clients to avoid paying tax quite legally.

Trusts, and the concept of equity, emerged from the Norman knights and lords, and their need to safeguard and protect tier land, vassals, estates and political interests. From that, the principles of equity developed and emerged over time. Starting from the medieval Maxims of Equity, the 21st century now sees injunctions, Mareva and Anton Pillar orders, trusts funds, and fiduciary duties. All of those are essentially based on equitable principles, laws and cases- but all have developed and evolved over time into the form they are today.

In following Charles Darwin’s theory of evolution, such change has not finished. The English legal system is still evolving, and changing to adapt to modern concerns, society, and new legal needs. Intellectual property law is a fast, new and developing area of law that would leave legendary former Lord Chief Justice Rufus Isaacs bewildered. A future Rufus Isaacs will be similarly confused by the obsession and legal implication of social media in the early 21st century.

As such, the current English legal system and code is definite, and set out and laid down- but also very indefinite, and subject to great change. Whilst remaining the same over time, the law is also constantly changing as society changes – a clear case of duang.

Similarly, language also changes, and reflects society. The English of William Shakespeare is very different to that of Charles Dickens- whose English is considered archaic when compared to the writing of Zadie Smith. The passing millennia have done the same for the Chinese; the elegant style of Han Yu is very different to the Chinese currently in use today. Although Han Yu and Sun Tzu would never use such a word as duang- they would be familiar with the colloquialisms of their time, and recognise the character for the cultural colloquialism it is, and as such understand the ‘meaning’ of such a word. Indeed, it is of such novelty, that there is yet to be a definitive meaning for duang.  Although their society, times, and language might be different to that of a modern Chines speaker- the underlying meaning of their words remains exactly the same, as the Chinese identity and spirit has never changed.

In law (and in language), the same underlying principles are always found. Times, society and statute may change- but the concept of law and language, and the identity and culture that they reflect, never changes.

In English, such a sentiment takes a paragraph to fully explain. For the Chinese, it probably takes just one character.


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The Realities of Legal Training

Whenever people think of the law as a profession, most people consider that that is synonymous with ‘lawyer.’

That is patently false. The average lawyer could not function were it not for the armada of other legal workers, such as legal secretaries or paralegals, court officials, judge’s clerk’s, civil servants (it is not just in the Ministry of Justice that civil servants work in a legal capacity), social workers, police (both administrators and front line officers), barrister’s clerks- the list is long and endless. Indeed, the legal sector in the 21st century is expanding, evolving and developing in ways unheard of by previous generations of lawyers, bringing with it other roles, job descriptions and opportunities for people to work in the legal profession without becoming a lawyer.

That is perhaps very useful, given the state of law schools in the UK. Recent years have seen record numbers of young school leavers (and more mature candidates) turning to study law. Drawn often by the romance, the status and earnings of a lawyer (all three of which are lies), they fall into the trap that is reading law at university. So do those who want a ‘professional’ career, but are not so enthusiastic about medicine or accounting. Indeed, given the nature of university admissions, many are drawn to choosing law as a ‘safe’ choice that can lead to a very good career.  The presentation of lawyers in the media, with all the glossy, smart, suave courtroom dramas (also inaccurate in their portrayal of the legal system and the courts). As such, record numbers have been studying law. Those numbers have continued to climb, indictating that the hefty student fees are not deterring many thousands of the young today from university.

Setting the LLB aside, there are other routes to achieving the status of ‘qualified lawyer.’ For the eternal student, those struggling to find or start a career, or the mature student or career changer, the intensive and infamous GDL beckons. The course is warmly welcomed as the opportunity it is; less so when the realities and tough nature of the course begin to sink in. Additionally, many universities now offer part time, distance and on line courses. In that area, the Open University is an acknowledged market leader. Many universities now offer part time, distance and on line courses. In that area, the Open University is an acknowledged market leader- and indeed has several rigorous part time legal degree options. As such, with the changes in further and higher education as regards availability for more people (young and old), and more varied and flexible methods of study, it is now easier than ever to study law, and to aspire to qualifying as a lawyer. The law schools themselves benefit from increased numbers of students. As such everyone benefits- except the one paying the astronomical bill for the studies.

However, studying law is but one step on the route to qualifying. After the studying is completed post LPC and BPTC, the hard work really begins- namely training contracts and pupillage. The last ten years or so has seen gaining pupillage and training contracts has become harder and harder; 2015 sees that entering the realm of the ‘nearly impossible’.

A huge problem (which was not sufficiently addressed by the LETR of 2013) is that there are, quite simply, too many law graduates in the UK for the industry to handle. That is not just as regards lawyers per se. Support workers (for example, the indefatigable paralegal) increasingly need more to prove themselves in job applications. With so few now becoming lawyers, that surplus of law graduates has ended up in the ranks of support workers. Consequently, to become a legal secretary now seemingly requires a law degree, or related studies and experiences. More firms are asking for experienced legal secretaries, or those with legal or postgraduate academics. As such, legal support roles are also becoming harder to come by. Another main source of legal career opportunities are in the various branches of the Civil Service. However, joining the Civil Service, even at an entry level, has become tougher and more competitive- especially given current economic troubles. Such competition is only increased by the fact that the Civil Service is one of the fewer and fewer workplaces that actually offers a realistic pension, and will continue to do so.

Efforts to open up legal education, to attract more people- especially from those areas of society who normally would not consider the law as a career- have been successful; so successful, that it is now to the detriment of both the legal sector, and those aspiring to a career in law. The government’s effort to make more consider the law (and the professions and further education) as a realistic prospect has actually come full circle. The sheer competition of the legal sector has resulted in the law being a very unrealistic prospect for a career except for the very best and brightest.

As for a solution- seemingly there is little or no immediate solution. Ironically, one solution would be to go full circle. One solution would be to make it harder to gain admittance to a legal course of study. Perhaps, introducing a US style LSAT might be an idea, as that would automatically limit the numbers on law courses. After all, it would not be the first time that the UK has ‘borrowed’ a course of action or principle from the US.

The legal sector as an employer is facing a problem at its junior end. Aside from the infamous LASPO having an effect on small law firms, or niche law firms (such as family and personal injury) and therefore on lawyer recruitment and retention, the sheer number of law graduates seeking to qualify as a lawyer makes things harder for recruiters. Receiving so many hundred stellar applications, how do you choose the best from the best? For those who make it to interview, that same problem is still present- but magnified. On the other hand, recruiters can be very selective in their choice of junior lawyers, which is only to their benefit.

One matter is certain; this is a growing problem. There are many possible solutions to this issue, none of which are easy. One of the most unpopular, but relatively easy to implement, would be to drastically limit the numbers studying law. However, given that the youth of today are slowly realising that becoming a lawyer, or a legal support worker, is becoming increasingly tough, fewer are turning to law to study or work in.

It is as if that problem has started to address itself, without government intervention, regulator reports, or industry meddling. Quite often, problems are the source of their own solution.

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Coins & Property: the Spoils of (Law)

January: the beginning of a New Year is often the time that many use to make changes in their lives. Smoking, alcohol, travel, career and related matters all form the basis of many an earnest (and often short lived) series of resolutions and plans for a New Year. However, the New Year is a very good time to start new things, such as a new sport or a new hobby. Such sports and hobbies can range from the prosaic and ordinary, such as football or chess, to the adventurous such as skiing or adventure travelling, to the esoteric, such as drystone walling or metal detecting.

As regards the latter, the proud British tradition of the eccentric amateur has long been seen walking the moors and fields with a metal detector (often lovingly altered). It is the keen aim of every hobbyist metal detector to unearth hidden treasure. On a regular basis, such hobbyists find a few coins, a few broken pots, and other small relics of bygone eras. However, sometimes some detectors strike it lucky, with finds that only a true eccentric, gifted and lucky amateur could achieve.

Most recently was a discovery made in Buckinghamshire; an intrepid and experienced metal detector unearthed over 5,000 old coins under a field. The remarkable and very well preserved find of Paul Coleman consisted of thousands of coins dating from Saxon and Niorman times, with rulers such as Ethelred the Unready and Canute depicted on the coins. Mr Coleman is reported to have unearthed a few of the coins, before realising that he was on to a larger find. Excavations later revealed the horde, which looked surprisingly fresh (some experts consider that it is possible that the coins originated from a medieval mint in Buckingham).

Before Mr Coleman and others start celebrating their find, there is the matter of the law- land law, to be precise. Before anyone can claim the coins, and see about benefiting from the find, the exact ownership of the coins has to be established. As such, the horde is now with the British Museum for study and safekeeping while the local Coroner’s Office adjudicates the find.

Land law is the bane of every law student’s life, being inherently complicated, and has seen the undoing of many a law student. Having evolved over nearly a millennia, it has acquired a complexity all of its own. Despite that, in many matters (such as easements and mortgages) land law can be remarkably logical and have a step by step approach. It also can often produce conflicting results.

The first point to consider for Mr Coleman is the Treasure Act (1996). Under the Treasure Act, ‘treasure’ is considered to be (inter alia) coins in excess of 300 years old, or two prehistoric base metals. If the coins are considered to be treasure, then the owner must offer the find to a museum, at a price determined by experts. Only if the museum declines, or if there is no national significance attached to the find, then the owner can keep their find. Further to the Treasure Act, other legislation grants the landowner sole title to any archaeological artefacts found on their land- if certain criteria are met, such as the artefacts in question not being treasure.

The key word there is ‘owner’. The true owner of the land where the find was made must be found and informed, and indeed any benefit or profit will go them. Given the torturous system of freeholds and leasehold, that is not actually as straightforward as it sounds. It is also compounded by land registration- a system that was designed to make ownership and conveyancing easier, but which has actually made a complicated matter more complicated, and involved more steps and paperwork. As such, establishing who the actual owner of the land is, and (sic) who actually has title to the find, can in itself be a piece of detective work worthy of Sherlock Holmes.

However, what of the likes of hobbyist metal detectors? Under law and equity, they are often entitled to nothing as a result of their finds. However, there are some provisions for such finders. Many metal detectors and clubs come to agreements with local landowners as regards any potential finds, such agreements, though,  are often informal, with even formal agreements having little basis in land law.

When it comes to finders, though, they do indeed have some rights. Every law student early on learns the Appeal Court case of Parker v British Airways Board, [1982] 1 QB 1004, and Lord Justice Donaldson’s famous poetical start to his verdict. He found that, firstly, all and every effort must be made to trace the true owner of the property found. If the owner cannot be found, then usually the landowner or occupier has title to any property found. Donaldson LJ went on to clarify those rights; the chattels (property) must be attached to the land (not just lying around) for the occupier to have title. Crucially, though, it was established that the occupier or landowner has to exert control over the land, and must have reasonable control as to access to the land. If there was no such control, or if the chattel is not attached to the land- then title reverts to the finder. Parker v British Airways did also establish other tests, caveats and considerations as regards finders’ rights- and is still binding authority in the matter.

Aside from the 1996 Act and finders’ rights, there are other points of land law to be considered before ownership and any derived benefit of the coins found in Aylesbury can be awarded to any one party. As has been mentioned, land law has a nasty habit of being contradictory at times, and in tying proceedings relating to property in legal knots.

As such, the legal battle could potentially drag out for some time, hinging on who actually owns the coins. In reality, though, such matters will be relativity straightforward for the Coroner’s Court to adjudicate on- especially as such a find could very well be considered to be of national historical significance, and it is quite clearly treasure under the 1996 Act. It is likely that the British Museum (or another museum) will buy the find from the landowner or Mr Coleman at a pre-agreed price.

Consequently, Mr Coleman gets a financial reward- and the coins get to be kept for posterity. In such a way, common sense and an innate sense of equity and fairness will prevail throughout the proceedings- regardless as to what the intricate, serpentine requirements of land and property law actually decree. In this case, for both sides, that is indeed a very satisfactory way to start 2015.

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